$~18 IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 9...
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CS(COMM) 9/2019 Page 1 of 17
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th
January, 2019 + CS(COMM) 9/2019
REPUBLIC OF INDIA THROUGH: MINISTRY OF
DEFENCE ..... Plaintiff
Through: Ms. Pinky Anand, ASG with Mr.
Rajesh Ranjan, Mr. Sumit Teterwal,
Mr. Joel, Ms. Kritika Sachdeva,
Advocates (M-9810003146)
versus
M/S AGUSTA WESTLAND INTERNATIONAL
LTD. ..... Defendant
Through: Mr. Arun Kathpalia, Senior Advocate
with Mr. Anand Prasad, Mr. Ashok
Bhan, Mr. Mohit Rohatgi & Ms.
Swati Narnulia, Advocates
(M-9971997784)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
I.A. 230/2019 (for exemption)
1. This is an application seeking exemption from filing original/certified
copies of documents. Recording the Plaintiff’s undertaking that the
inspection of original documents shall be given, if demanded, or that the
original documents/certified copies shall be filed prior to the stage of
admission/denial, the exemption is allowed. I.A. is disposed of.
I.A. 231/2019 (for exemption)
2. This is an application seeking extension of time to file the requisite
Court fee. The time for deposit of court fees is extended by two weeks. I.A.
is disposed of.
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CS(COMM) 9/2019
3. Let the plaint be registered as a suit.
4. Mr. Anand Prasad accepts summons on behalf of the Defendant.
5. List before Court on 28th February 2019.
I.A. 229/2019 (u/O XXXIX Rule 1 and 2 CPC)
6. The present suit has been filed seeking declaration and permanent
injunction in the following terms:
“A. Pass a decree of declaration that the mandate
of the Arbitral Tribunal has been terminated in terms
of Section 29A of the Arbitration and Conciliation Act,
1996.
And/or
B. Pass a decree of Permanent Injunction
restraining the Defendant from continuing with the
Arbitration Proceedings being Claim no. 1 of 2017 as
the mandate of the Arbitral Tribunal has been
terminated.
C. Pass a decree of Permanent Injunction
restraining the Defendant from continuing with the
Arbitration Proceedings being Claim no. 1 of 2017
pending before the Ld. Tribunal consisting of
Professor William W Park, Hon‟ble Justice B.N
Srikrishna and Hon‟ble Justice BP.P Jeevan Reddy on
the basis of pendency of serious criminal cases before
Special Court for CBI alleging criminal offences of
corruption and fraud under Prevention of Corruption
Act and Indian Penal Code and Special Courts for
Enforcement Directorate alleging serious offences
under Prevention of Money Laundering Act 2002.
D. Award costs in favor of the Plaintiff and
against the Defendant.”
7. The suit was listed upon urgent mentioning on 8th January, 2019 at
3.50pm. The matter was directed to be listed today i.e., on 9th
January, 2019
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in the supplementary list. It was also directed that an advance copy of the
suit and documents be served on the Defendant via electronic e-mail. Since
the hearing before the Arbitral Tribunal was today, detailed submissions
have been heard on behalf of both parties.
8. The urgency expressed by the Plaintiff is that the Arbitral Tribunal
constituted under Article 21 of the agreement dated 8th
February, 2010
between the Government of Republic of India, Ministry of Defence, and
Augusta Westland International Ltd., is scheduled to hold its hearing this
afternoon.
9. There are various issues which have been raised in the present suit.
The Ld. ASG appearing for the Plaintiff submits that the arbitral
proceedings deserve to be stayed as the mandate of the Arbitral Tribunal
stands terminated in terms of Section 29A of the Arbitration and
Conciliation Act, 1996 (hereinafter, „the Act‟).
10. She further submits that the various allegations raised in respect of the
entire transaction as also the allegations of corruption, fraud, and bribery
cannot be gone into by the Arbitral Tribunal, and hence the disputes, not
being arbitrable, the arbitral proceedings deserve to be stayed.
11. Mr. Arun Kathpalia, Ld. Senior Counsel appearing for the Defendant
submits that the present case is not governed by the provisions of Section
29A of the Act, inasmuch as the arbitral proceedings had commenced much
prior to the Amendment Act of 2015 coming into force. He places on record
some of the correspondence as also the communications by the International
Court of Arbitration to argue that both parties had nominated their respective
Arbitrators, and the third Arbitrator, Prof. William W. Park, was nominated
as far back as on 2nd
August, 2014/7th August, 2014, when the Plaintiff had
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given its no objection to the appointment of Prof. Park and the Arbitral
Tribunal stood constituted by the ICC. He submits that as on 7th
August,
2014, the ICC, in fact, closed the file relating to these proceedings and hence
the proceedings had commenced prior to the Amendment Act of 2015
coming into force.
12. Mr. Kathpalia further submits that the Plaintiff has already taken its
preliminary objections as to the jurisdiction of the Arbitral Tribunal on 28th
October, 2014, before the Tribunal itself. Thus, it is for the Tribunal to rule
on its jurisdiction on the basis of the objections raised by the Plaintiff.
13. The Ld. ASG submits that in the present case, the Terms of the
Appointment of the Arbitrators was fixed on only 16th March, 2017 and
hence, the Arbitral Proceedings are governed by the provisions of the Act, as
amended in 2015.
14. Both counsels have referred to various authorities in support of their
respective cases.
15. The first observation of the court is that the Arbitral record, including
the orders passed by the Tribunal till date have not been placed before the
court. The court has not seen the claims raised, nature of objections raised as
also the material placed before the Arbitral Tribunal. Insofar as the
allegations of fraud, corruption, and bribery are concerned, which have been
raised in the present case, the Defendant has also not been heard.
16. At present, the short issue to be considered is as to whether the
Amendment Act of 2015 applies to the Arbitral proceedings. The Arbitration
and Conciliation (Amendment Act) of 2015 (hereinafter, „Amendment Act‟)
came into force on 23rd
October, 2015. Section 26 of the Amendment Act
reads as under:
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“26. Act not to apply to pending arbitral proceedings.
– Nothing contained in this Act shall apply to the
arbitral proceedings commenced, in accordance with
the provisions of section 21 of the principal Act, before
the commencement of this Act unless the parties
otherwise agree but this Act shall apply in relation to
arbitral proceedings commenced on or after the date of
commencement of this Act.”
17. The above provision refers to Section 21 of the principal act which
reads as under:
“21. Commencement of arbitral proceedings.– Unless
otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute
commence on the date on which a request for that
dispute to be referred to arbitration is received by the
respondent.”
18. The question is - whether the time limits prescribed under Section
29A of the Act would apply to pending proceedings where arbitral
proceedings have already commenced. The question of whether arbitral
proceedings have been commenced is now settled i.e., the commencement
takes place on the date on which a request for the disputes to be referred to
arbitration, is received. Admittedly, in the present case, the notice invoking
arbitration was issued on 4th October, 2013, when the Defendant invoked the
Arbitration clause in the contract.
19. On 21st October, 2013, the Plaintiff raised various issues in respect of
the arbitrability of the disputes and made reference to the inquiry, which had
been ordered by the CBI on 12th February, 2013. In this communication, the
Plaintiff also made reference to the Pre-Contract Integrity Pact (hereinafter,
„PCIP‟) dated 3rd
October, 2008, which does not contemplate arbitration.
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20. Subsequently, however, on 1st January, 2014, the Plaintiff appointed
Hon’ble Justice Jeevan Reddy (Retd. Judge of the Supreme Court) as its
Arbitrator in the following terms:
“Sir,
With reference to your letters dated November 25,
2013 and December 4, 2013 calling upon the
Government of India to nominate an arbitrator, the
Government of India hereby appoints Hon‟ble Mr.
Justice B.P. Jeevan Reddy, former Judge of the
Supreme Court of India, as one of the arbitrators,
without prejudice to all its contentions, including
without limitation, with regard to arbitrability of the
claims made by AWIL and the jurisdiction of the
arbitrators.
2. Again, and without prejudice, in terms of Clause
21.4 of the Agreement, we request you to propose the
names of three persons for the purpose of selecting the
third arbitrator by agreement of the parties.”
21. Since there was no consent between the two Arbitrators for
appointment of the third Arbitrator, the International Court of Arbitration
appointed Prof. William W.Park as the third Arbitrator. On 2nd
August,
2014, the Plaintiff gave its consent to the appointment of Prof. Park as the
third Arbitrator. The said email addressed by the solicitors of the Plaintiff
dated 2nd
August, 2014 is set out below:
“Dear Colleagues,
Further to our email of earlier today (below), we write
to confirm that the Respondent, having now considered
Professor Park‟s disclosure, has no objection to his
appointment as the third arbitrator.
The Respondent, however, reserves all its rights and
contentions with regard to arbitrability of the
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Claimant‟s claims, the jurisdiction of the tribunal, and
its right to object to any enlargement of the scope of
reference of arbitration.
Best regards,
Sd/-
Partner
White & Case.”
22. On 7th August, 2014, the ICC confirmed as under:
“Dear Madam and Sirs,
The Secretariat is pleased to inform you that, at its
session of 7 August 2014, the Special Committee of the
Court appointed Professor William W. Park as third
arbitrator in the above-referenced case.
For good order, a copy of the Declaration of
Acceptance and Statement of Independence as well as
the curriculum vitae of Professor Park are enclosed for
the parties.
From now on, the parties should correspond directly
with the arbitral tribunal and send copies of their
correspondence to the other side.
The Secretariat hereby administratively closes the
file.”
Thus, the Arbitral Tribunal stood constituted as on 7th
August, 2014 i.e.,
prior to the Amendment Act coming into force.
23. At this stage, the document described as Terms of Appointment dated
16th March, 2017, and the purport of the said document relied upon by the
Ld. ASG, needs to be considered. The said document is a procedural order
passed by the Arbitral Tribunal which records the following:
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1. Parties
2. Appointment of Arbitral Tribunal
3. Remuneration and expenses of the Arbitrators
4. Advance on costs
5. Confidentiality
6. Immunity from suit
7. Notices
This document is signed by all the three arbitrators.
24. In the section on appointment of the Arbitral Tribunal, this document
records in para 3 as under:
“…
3. The Parties confirm their acceptance of an Arbitral
Tribunal comprising Justice B.N. Srikrishna (Ret.),
appointed by Claimant, Justice B.P. Jeevan Reddy
(Ret.), appointed by Respondent, and Professor
William W. Park, appointed as Presiding Arbitrator by
the International Chamber of Commerce on
consultation with the Parties.”
25. The submission of the Ld. ASG is that the date when the `Terms of
appointment’ were drawn, ought to be construed as the date when the
commencement of arbitral proceedings takes place. She relies upon the
Explanation in Section 29A(1) which reads as under:
“29-A. Time-limit for arbitral award.
(1) The award shall be made within a period of
twelve months from the date the arbitral tribunal
enters upon the reference.
Explanation.—For the purpose of this sub-section, an
arbitral tribunal shall be deemed to have entered upon
the reference on the date on which the arbitrator or all
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the arbitrators, as the case may be, have received
notice, in writing, of their appointment.
(2) If the award is made within a period of six
months from the date the arbitral tribunal enters upon
the reference, the arbitral tribunal shall be entitled to
receive such amount of additional fees as the parties
may agree.
(3) The parties may, by consent, extend the
period specified in sub-section (1) for making award
for a further period not exceeding six months.
(4) If the award is not made within the period
specified in sub-section (1) or the extended period
specified under sub-section (3), the mandate of the
arbitrator(s) shall terminate unless the Court has,
either prior to or after the expiry of the period so
specified, extended the period:
Provided that while extending the period under this
sub-section, if the Court finds that the proceedings
have been delayed for the reasons attributable to the
arbitral tribunal, then, it may order reduction of fees of
arbitrator(s) by not exceeding five per cent for each
month of such delay.
(5) The extension of period referred to in
sub-section (4) may be on the application of any of the
parties and may be granted only for sufficient cause
and on such terms and conditions as may be imposed
by the Court.
(6) While extending the period referred to in
sub-section (4), it shall be open to the Court to
substitute one or all of the arbitrators and if one or all
of the arbitrators are substituted, the arbitral
proceedings shall continue from the stage already
reached and on the basis of the evidence and material
already on record, and the arbitrator(s) appointed
under this section shall be deemed to have received the
said evidence and material.
(7) In the event of arbitrator(s) being appointed
under this section, the arbitral
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tribunal thus reconstituted shall be deemed to be in
continuation of the previously appointed arbitral
tribunal.
(8) It shall be open to the Court to impose actual
or exemplary costs upon any of the parties under this
section.
(9) An application filed under sub-section (5)
shall be disposed of by the Court as expeditiously as
possible and endeavour shall be made to dispose of the
matter within a period of sixty days from the date of
service of notice on the opposite party.”
26. The language of Section 26 of the Amendment Act is very clear. It
clearly specifies that the Amendment Act of 2015 does not apply “to the
arbitral proceedings commenced in accordance with provisions of Section
21 of the principal act”. Thus, if Arbitral proceedings have commenced
under Section 21 of the Act, prior to coming into force of the 2015
Amendment Act, then Section 29A of the Act would not be applicable.
27. In Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. &
Ors. (2018) 6 SCC 287 (hereinafter „BCCI‟), the Supreme Court has held as
under:
“39. … The scheme of Section 26 is thus clear: that the
Amendment Act is prospective in nature, and will apply
to those arbitral proceedings that are commenced, as
understood by Section 21 of the principal Act, on or
after the Amendment Act, and to court proceedings
which have commenced on or after the Amendment Act
came into force.”
28. Ld. ASG relies upon the observations of the Supreme Court in para 64
and 65 of BCCI (supra) to submit that the time period prescribed is
procedural in nature and should therefore operate retrospectively, just as in
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the case of Section 36. A reading of BCCI (supra), especially para 75, is
clear that the Supreme Court was dealing with the question as to whether
Section 36 of the Amendment Act would be applicable to court proceedings
which commenced after the Amendment Act came into force. In BCCI
(supra) the execution applications were filed on 26th November 2015.
Section 36 is clearly a proceeding before the court and not before the
Tribunal.
29. The Explanation in Section 29A(1) uses the terminology “deemed to
have entered upon reference”. This language is clearly distinct and different
from commencement of Arbitral proceedings used in Section 21 of the Act.
While the time period prescribed in Section 29A Act would apply from the
date when the Tribunal enters upon reference, the commencement of arbitral
proceedings does not take place when the Tribunal enters reference.
30. Arbitral Proceedings are deemed to have commenced as per the
provisions of Section 21 of the Act and not as per the Explanation to Section
29A(1) of the Act.
31. The legislative intent was obviously not to make the provisions of
Section 29A of the Act retrospective in nature. Section 26 of the
Amendment Act is clear that the amendments apply prospectively, insofar as
arbitral proceedings are concerned.
32. Mr. Kathpalia has referred to a view of the single judge of the
Madhya Pradesh High Court in M/s G.S. Developers and Contractors Pvt.
Ltd. v. M/s Divya Dev Developers Pvt. Ltd [AC NO.41/2018 dated 30th
July, 2018], wherein the court has held as under:
“12. A perusal of the aforesaid provision reveals that
the provision do not apply to the arbitral proceedings
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which had already commenced in terms of Section 21
of the Act of 1996 but the amended provisions apply to
the court proceedings “in relation to arbitral
proceedings” commenced after the amendment.”
33. On a specific query, counsels for both the parties confirm that they
were unable to find any judgement where a view has been taken by this
Court, on this aspect.
34. The purpose of the Explanation in Section 29A is to ensure that the
timelines prescribed for making of the award commence from the date when
the Tribunal enters reference. In arbitral proceedings, there is a time gap
between the commencement of arbitral proceedings and the Tribunal
entering reference. Once a notice invoking arbitration is issued by one party,
the constitution of the Tribunal takes some time and on several occasions
requires the intervention of Courts and Arbitral institutions. If a time period
is prescribed for making of the award, to begin from the commencement of
arbitral proceedings, the same would be impractical. Hence the need for the
Explanation to Section 29A. However, what is clear from a reading of
Section 21 and the Explanation to Section 29A is that there is a clear
distinction between `commencement’ of arbitral proceedings and `entering
upon the reference’. They are not synonymous, as is sought to be urged. For
deciding whether the amendments of 2015 apply or not, to a particular
Arbitral proceeding, the provisions of Section 21 have to be considered and
not the Explanation to Section 29A. Under Section 21 parties can agree as to
when arbitral proceedings would commence. In the absence of any
agreement between the parties, the commencement is from the issuance of
notice invoking arbitration. There is no agreement to the contrary, that either
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party has pointed out, in the present case, on the issue of `commencement’
of arbitral proceedings. The document `Terms of Appointment’ dated 16th
March 2017, is not an agreement to the contrary between the parties, as
contemplated under Section 21 of the Act. Thus, the mandate of the Arbitral
Tribunal does not stand terminated under Section 29A of the Act. This court
agrees with the view of the Madhya Pradesh High Court that Section 29A of
the Act does not apply to arbitral proceedings commenced prior to the
coming into force of the Amendment Act of 2015.
35. Thus, the mandate of the Arbitral Tribunal, constituted under the
Agreement dated 8th February, 2010, in the present case, does not stand
terminated.
36. The question then arises as to whether the Arbitral proceedings in the
present case ought to be terminated, owing to the nature of allegations
raised.
37. The objections raised by the Plaintiff, challenging the jurisdiction of
the Arbitral Tribunal were filed way back in October, 2014. From the
documents placed on record, and the list of dates, it is submitted that
subsequent to the filing of the said objections, the Charge-sheet has also
been filed by the CBI, and the Special Judge CBI has taken cognizance of
the offences alleged. These are subsequent developments which have taken
place after the objections under Section 16 of the Act were filed before the
Tribunal.
38. In Mcdonald’s India Pvt. Ltd. v. Vikram Bakshi & Ors. (2016) 232
DLT 394, a Ld. Division Bench of this Court, has held as under:
“63. Courts need to remind themselves that the trend is
to minimize interference with arbitration process as
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that is the forum of choice. That is also the policy
discernible from the 1996 Act. Courts must be
extremely circumspect and, indeed, reluctant to thwart
arbitration proceedings. Thus, while courts in India
may have the power to injunct arbitration proceedings,
they must exercise that power rarely and only on
principles analogous to those found in sections 8 and
45, as the case may be, of the 1996 Act. We have
already indicated that the circumstances of invalidity
of the arbitration agreement or it being inoperative or
incapable of being performed do not exist in this case.”
39. Thus, a suit seeking an injunction against Arbitral proceedings is
maintainable, though the said power is to be exercised sparingly.
40. In A. Ayyaswamy v. A. Paramasivam & Ors. (2016) 10 SCC 386, the
Supreme Court, while dealing with the issue as to which disputes ought to
be considered as being non-arbitrable disputes, has observed as under:
“14. ….. The courts have held that certain disputes
like criminal offences of a public nature, disputes
arising out of illegal agreements and disputes relating
to status, such as divorce, cannot be referred to
arbitration.
The following categories of disputes are generally
treated as non-arbitrable:-
(i) patent, trade marks and copyright,
(ii)anti-trust/competition laws;
(iii)insolvency/winding up;
(iv)bribery/corruption;
(v)fraud;
(vi)criminal matters.
Fraud is one such category spelled out by the decisions
of this Court where disputes would be considered as
non-arbitrable.
25. In view of our aforesaid discussions, we are
of the opinion that mere allegation of fraud simpliciter
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may not be a ground to nullify the effect of arbitration
agreement between the parties. It is only in those cases
where the court, while dealing with Section 8 of the
Act, finds that there are very serious allegations of
fraud which make a virtual case of criminal offence or
where allegations of fraud are so complicated that it
becomes absolutely essential that such complex issues
can be decided only by the civil court on the
appreciation of the voluminous evidence that needs to
be produced, the court can sidetrack the agreement by
dismissing the application under Section 8 and proceed
with the suit on merits. It can be so done also in those
cases where there are serious allegations of
forgery/fabrication of documents in support of the plea
of fraud or where fraud is alleged against the
arbitration provision itself or is of such a nature that
permeates the entire contract, including the agreement
to arbitrate, meaning thereby in those cases where
fraud goes to the validity of the contract itself of the
entire contract which contains the arbitration clause or
the validity of the arbitration clause itself. Reverse
position thereof would be that where there are simple
allegations if fraud touching upon the internal affairs
of the party inter se and it has no fraud touching upon
the internal affairs of the party inter se and it has no
implication in the public domain, the arbitration clause
need not be avoided and the parties can be relegated to
arbitration. While dealing with such an issue in an
application under Section 8 of the Act, the focus of the
court has to be on the question as to whether
jurisdiction of the court has been ousted instead of
focusing on the issue as to whether the court has
jurisdiction or not. It has to be kept in mind that
insofar as the statutory scheme of the Act is concerned,
it does not specifically exclude any category of cases
as non-arbitrable. Such categories of non-arbitrable
subjects are carved out by the courts, keeping in mind
the principle of common law that certain disputes
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which are of public nature, etc. are not capable of
adjudication and settlement by arbitration and for
resolution of such disputes, courts i.e. public for a, are
better suited than a private forum of arbitration.
Therefore, the inquiry of the Court, while dealing with
an application under Section 8 of the Act, should be on
the aforesaid aspect viz. whether the nature of dispute
is such that it cannot be referred to arbitration, even if
there is an arbitration agreement between the parties.
When the case of fraud is set up by one of the parties
and on that basis hat party wants to wriggle out of that
arbitration agreement, a strict and meticulous inquiry
into the allegations of fraud is needed and only when
the Court is satisfied that the allegations are of serious
and complicated nature that it would be more
appropriate for the Court to deal with the
subject-matter rather than relegating the parties to
arbitration, then alone such an application under
Section 8 should be rejected.”
41. Insofar as the question as to whether the contract which includes the
arbitration agreement is vitiated by fraud, as also the allegations of bribery
and corruption, are concerned, in order for this Court to decide the said
question, the nature of the claims raised by the Defendant and the nature of
objections and allegations raised by the Plaintiff need to be considered. The
arbitral record is not before the court and the Defendant has also not yet
been given an opportunity to respond to the case set out by the Plaintiff.
Whether the arbitration agreement has been nullified would require to be
determined after calling for a Reply from the Defendant. Clearly, the
Arbitral Tribunal has not taken a view on the objections raised by the
Plaintiff in October 2014, as to arbitrability of the disputes. There have also
been subsequent developments which are pleaded in the Plaint. The question
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as to the arbitrability of the disputes, in the context of the claims raised and
the allegations of the Plaintiff, as also whether they can be raised at this
stage when the Tribunal stands constituted, owing to subsequent
developments including the filing of the charge sheet/framing of charges by
the CBI court, deserve to be considered by this Court.
42. The question as to whether the arbitration agreement stands nullified
in the present case, owing to the allegations that there are allegations of
corruption and fraud, cannot be rejected at this stage. However, for the said
purpose, the Court would require the parties to complete their pleadings in
the application seeking interim injunction. The Court would also like the
Arbitral record to be placed before it. Accordingly, at the time of
consideration of the application under Order XXXIX Rules 1&2, the
submission that the question of arbitrability has already been raised before
the Ld. Tribunal, and whether the parties deserve to be relegated to the
Tribunal, would also be considered. The Plaintiff would also address
submissions on the maintainability of a civil suit, in these circumstances, on
the next date of hearing
43. Reply to the application be filed, as requested, within three weeks.
Rejoinder, if any, within two weeks, thereafter. List on 28th
February 2019.
44. Copy of this order may be placed before the Ld. Arbitral Tribunal.
45. A copy of this order be given dasti under signature of the Court
Master.
PRATHIBA M. SINGH
JUDGE
JANUARY 09, 2019
Rahul
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